65 Ky. 58 | Ky. Ct. App. | 1867
delivered the opinion of the oohbt:
Appellants brought their separate actions against L. L. Leavell and others, on the 18th of June, 1861; and, for grounds stated in their affidavits filed at the time, they caused attachments to issue against the estate of said Leavell — which had descended to him from his father— in the hands of the administratrix and the tenants of said decedent.
The orders of attachment were placed in the hands, of Graves, deputy sheriff of Christian county, on the day they were issued, but were never .returned until March, 1865.
Subsequently, summonses were issued and executed on the defendant, and at the October term, 1863, of the
It is further alleged, that, after the attachments were levied, L. L. Leavell sold his undivided interest in the
It is not alleged in either of the petitions that Bell, the purchaser, had actual notice of the levy of the attachments or the existence of the actions. Four years had nearly elapsed, and the officer had made no return of the attachments ; and if it be conceded that, on account of the invasion of Christian county by a part of the forces of the Confederacy, and the officer in whose hands the attachments were placed had left without returning them, and they could not be procured, no reason nor excuse is assigned or offered why other attachments were not sued out and caused to be levied. We have already seen that summonses were sued out and actually executed, and a personal judgment obtained, as early as October, 1863, after the institution of the actions.
It is not alleged that there was any interruption in the holding of the courts from 1862.
The question then resolves itself into an inquiry whether appellants were guilty of culpable negligence in prepar
In Clarkson, &c., vs. Morgan’s devisees (6 B. M., 441), the doctrine' as applicable to a lis pendens, as laid down by Sugden on vendors, is quoted with approbation, and is to the following effect: “ Relief being sought against a bona fide purchaser who bought, pendente lite, without actual notice, is, however, considered a hard case in equity, and although the court cannot refuse its aid against him, yet the plaintiff is by no means a favorite, and therefore, if he make a slip in his proceedings, the court will not assist him to rectify the mistake.”
We are not prepared to say that the delay, from thef succeeding term, after the attachments were sued out, until October, 1863, to renew the attachments and to prepare their case, in view of the then disturbed condition of the country, would amount to such laches as to deprive them of the benefit of - a lis pendens-, but a delay of nearly two years thereafter, without a step taken in the case or a motion made indicating an intention to prosecute the suit, without an excuse offered or any explanation given for the delay, is such gross and culpable negligence in the prosecution of their suit as to deprive them of the benefit of the rule.
In this view of the case, it is not necessary to decide the question of the competency of the witnesses whose depositions were rejected, as actual notice to Bell is not alleged.
Wherefore, the judgment is affirmed.